Prescribing Invasive Species Act, 2015 Instruments under the Environmental Bill of Rights, 1993

The Ontario Environmental Bill of Rights, 1993 (EBR Act) requires that Ministries provide opportunities for public participation before decisions are made regarding the use of instruments which may significantly affect the environment. This includes the posting of proposal notices on the Environmental Registry of Ontario (ERO).

The EBR Act defines instruments as any document of legal effect issued under an Act and includes a permit, licence, approval, authorization, direction or order issued under an Act, but does not include a regulation. Only instruments that are prescribed under Ontario Regulation 681/94 are required to be posted on the ERO.

Decisions to prescribe an instrument under EBR Act Ontario Regulation 681/94 consider the environmental significance of the action enabled by the instrument on the environment, including:

• the extent and nature of the measures that might be required to mitigate or prevent any harm to the environment
• the geographic extent, whether local, regional or provincial, of any harm to the environment
• the nature of the private and public interests, including governmental interests, involved in the decision
• any other matter that the minister considers relevant  

The assessment of environmental significance also informs the classification of the instrument as 1, 2 or 3, which determines the level of public engagement that is required.

• Class I: Notice of proposal must be placed on the Registry for a minimum 30-day public comment period.
• Class II: Notice of proposal must be placed on the Registry; the minister must consider providing more than 30 days for public comment; plus some other form of public notice must be given (e.g. news release, notice through news media, door to door flyers, signs, mailings to the public, notice to community leaders/organizations and political representatives, notice on the Registry in addition to the minimum 30 days, or any other way).  Consideration of enhanced public participation is required for Class II instrument proposals.
• Class III: Notice of proposal must be placed on the Registry for a minimum of 30 days and these proposals are subject to a public hearing.  Third party appeal rights do not apply to Class III instruments. (Note: MNRF does not have any Class III instruments, although Class II instruments may become Class III if there is a hearing.)

We have completed a review of instruments under the Invasive Species Act, 2015 (ISA) and are proposing that Section 13: Prevention and Response Plans be prescribed as a Class I instrument under Ontario Regulation 681/94 under the EBR Act.

This is consistent with past ministry practice which included posting Prevention and Response Plans for Water Soldier and European Water Chestnut on the ERO.

This proposal would ensure all future Prevention and Response plans prepared in accordance with Section 13 of the ISA will be posted on the ERO for public review and comment.

Prevention and Response Plans describe measures, practices or recommended courses of action to deal with an invasive species, including:

1. measures, including rapid response measures, to help prevent the invasive species from entering Ontario or a part of Ontario
2. practices to promote the early detection of the invasive species
3. measures for the control or eradication of the invasive species

Prevention and Response Plans may authorize a person or group of persons to carry out measures and practices set out in the plan including measures that may be prohibited in regulation e.g., possession and transport of a regulated invasive species.

Prevention and Response Plans for Water Soldier and European Water Chestnut are available online under Authorization under the ISA.

Additional instruments provided in the ISA such as Authorizations have been reviewed and the ministry has determined that the use of these instruments does not significantly affect the environment.

Following the completion of this consultation period and comment review, the ministry will work with the Ministry of Environment Conservation and Parks to amend Ontario Regulation 681/94 if the decision is to proceed with prescribing Prevention and Response Plans.

Regulatory impact analysis

We anticipate this proposal will have positive environmental, social and economic benefits, as this will ensure all future Prevention and Response Plans under the ISA are made available for public review and comment.

This proposal does not create new administrative costs to businesses in Ontario, nor directly impact stakeholders in Ontario.